B.C. employers could impose vaccine mandates in their workplace, but they would face legal hurdles without provincial legislation on the issue, according to legal experts.
On Thursday, the province announced that workers in long-term care and assisted living facilities must be fully immunized against COVID-19 by Oct. 12.
While announcing the mandate through a provincial health order, Provincial Health Officer Dr. Bonnie Henry noted businesses don’t need such an order to impose vaccine mandates on their own.
As the federal government imposes a similar policy for public servants and air passengers, there are questions over whether workers could be fired for refusing to get vaccinated or whether mandates contravene any human rights codes.
Legal experts say that employers in B.C. would have to demonstrate that mandating vaccinations would be essential for a safe working environment and for employees to do their job.
“I think in the vast majority of B.C. workplaces, employers would have a lot of trouble establishing a legal basis to actually require their workers to be vaccinated as a condition of employment,” said Nathan Rayan, a litigation lawyer with North Shore Law.
Rayan says an employer would have to demonstrate a “bona fide” occupational requirement to make vaccines compulsory, a high bar.
However, Chris Drinovz, an employment lawyer at KSW Lawyers, says there is precedent for it already in B.C.’s health-care system.
“There’s been a policy requiring either a mask or a vaccination against influenza for a number of years,” he said. “And that’s very specific to the health-care industry, but it has been upheld as reasonable.”
Drinovz says that the threat of variants and the fact that vaccines curb virus transmission could be enough proof for some employers to require vaccines.
Without provincial legislation, however, each employer’s decision will have to be on a case-by-case basis.
Mandating vaccines easier for hiring than firing
The B.C. human rights commissioner said in July that individual vaccine mandates could be implemented only if “other less intrusive means of preventing COVID-19 transmission [were] inadequate” for the workplace.
Human rights are an obvious concern when it comes to vaccine mandates, according to Drinovz.
This is especially so, given that it is entirely legal for non-unionized workplaces to fire employees for any reason whatsoever, including not being vaccinated.
“Human rights legislation across Canada protects people from discrimination on the basis of certain protected characteristics,” he said. “One of those is a medical disability, another one is somebody’s legitimate religious beliefs.”
In the opinion of both Drinovz and Rayan, not being vaccinated does not constitute “just cause” for firing.
That would mean if employees were fired for being unvaccinated and felt they were discriminated against, employers could be taken to tribunals and be told to pay severance or notice.
On the other hand, Rayan says mandating vaccines for incoming employees would be much easier.
“Employers have a tremendous amount of discretion to hire employees that they think will be a good fit for the organization,” he said.
“I don’t see any reason why vaccination couldn’t be one of those things that an employer looks for.”
Without the backing of far-reaching federal legislation, Drinovz says employers should be prepared to implement work-from-home and other safety measures in the absence of vaccine mandates.